Today’s conference focuses on online and media industries, and the impacts on our democratic dialogue of changes in those spaces. Of course, in America we want institutions that make our democracy strong—that seems like a no brainer. So as one line of thinking goes, antitrust enforcers should step beyond consumer welfare and think about what would be good or bad for our democracy, or for values like the free speech the First Amendment protects. The suggestion is that perhaps enforcers should broaden the consumer welfare lens to think about effects on democracy or expression.I’d like to focus my remarks today on two responses to that suggestion. First, we shouldn’t go down that road, because enforcement actions purportedly aimed at supporting our democracy carry too great a risk of inadvertently undermining our constitutional values. Second, we don’t need to go beyond the consumer welfare standard, because it can get the job done on its own. Allow me to take those one at a time.The first point is that there are serious risks to democracy in abandoning the consumer welfare standard.

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That risk in antitrust enforcement is significant. Enforcement decisions targeting democratic ends would invite a self-defeating exercise of prosecutorial subjectivity. Republican and Democrat prosecutors, or those of any party or political orientation, carry with them their own perceptions of what is good and bad for our democracy and for society at large. The Constitution insists they set those views aside in exercising their prosecutorial discretion, not embrace them as rules of decision. As the Supreme Court explained in its 1963 Philadelphia National Bank decision, antitrust enforcers aren’t tasked with some “ultimate reckoning of social or economic debits and credits,” but rather Congress has focused us on preserving our competitive economy. By giving us focus, the consumer welfare standard reduces the risk of what Brandeis called “dangers to liberty” from well-meaning enforcers.

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Next, allow me to address why I think our current standard is up to the task. First of all, even when applying a consumer welfare standard, antitrust enforcement can benefit our democracy and support media markets conducive to discourse. The competitive economy the consumer welfare standard is designed to protect supports those goals.

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To frame it in economic terms, a consumer welfare standard that focuses liability determinations on harms to competition and consumers creates positive externalities for American democracy.